Insurer Cherry Picks what surveillance to disclose in a car accident case

Certain fact patterns in cases are so unbelievable, that even the most experienced and seasoned personal injury lawyer can’t make them up. Just when you thought you’d seen it all…

It’s common for insurers in Ontario (and all across Canada for that matter), to retain private investigators to conduct surveillance on injured accident victims. The investigators are paid by the insurer to follow as discretely as possible the Plaintiff and try to catch them in the act of doing something that runs contrary to their case.

For example, if the medical records from the Plaintiff’s medical experts show that the Plaintiff can’t run; and the Plaintiff at his/her Examination for Discovery states on the record and under oath that s/he can’t run; but the insurer has video surveillance of that very same person running in multiple marathons/races post accident; then that Plaintiff’s credibility will be left in doubt for a Judge and Jury at trial.

If the Plaintiff complains that s/he cannot work and cannot lift, but there is surveillance showing that same person working at a rock quarry lifting heavy boulders; again that person’s credibility will be a big issue at trial.

If the Plaintiff is lying about this, then what’ s to say that s/he isn’t lying about that? What’s to say that the Plaintiff isn’t lying about how the accident happened, the severity of their injuries, and how their injuries are impacting their day to day life? Can we now trust anything this person has to say?

Credibility and likeability are two big factors at trial. The more credible and likeable the Plaintiff is for a Judge/Jury; the greater the chance his/her version of the events and injuries will be believed. That translates in to a greater award at trial. The same goes the other way. The less credible and likeable the Plaintiff, the greater likelihood his/her version of the events will not be accepted. This will translate in to a lesser award at trial.

Insurers and personal injury lawyers across Ontario know how this works quite well. That’s why surveillance can be so important in a personal injury case.

It’s with that backdrop that I refer to a recent decision out of BC which caught my eye. BC is different than Ontario when it comes to car accidents. There aren’t any private insurers like State Farm, Wawanesa, Intact, Co-operators, The Personal, Aviva, TD Insurance etc. Every BC driver has to be insured with the public ICBC system. When you sue, you are seeking compensation from a Government Run Crown Corporation.

You would think that a publicly run system should be more open, more transparent, and more accountable to the people which it insures. This was not the case in the recent decision of Burgess v. South Coast BC Transit Authority.

In this case, the publicly funded insurer secured surveillance of the Plaintiff in 2013 and 2014. At a Pre-Trial, the judge ordered that the insurer hand over and surveillance footage it might have. The insurer failed to do so.

After a 20 day trial (4 weeks+) the insurer admitted that it now had surveillance footage in its possession which showed the Plaintiff in a weakened state, entering a Starbucks for a coffee, then collapsing before being take away via ambulance.

This surveillance was helpful to the Plaintiff’s case. Yet, it was not disclosed until after the trial had been completed. The insurer’s lawyers admitted that the surveillance was in fact harmful to their case and to the position that they had taken during the 20 day trial.

The insurer had paid around $23K for the surveillance and for other witness interviews to be conducted in order to fight the Plaintiff’s case.

The late disclosure of this evidence had a grave impact on the administration of justice and was grounds for a mistrial. It also impacted the reputation of the insurer, along with the reputation of the Court itself.

The insurer was ordered to pay the Plaintiff’s lawyers’ full 30% contingency at $155,340.86 plus disbursements of $175,868.64, plus an unprecedented $155,000 special costs award.

Surveillance cuts both ways. It can show the good from the insurer’s perspective; meaning it can catch a Plaintiff in a lie or doing something they shouldn’t be doing. It can be bad for the insurer as it was in this case whereby it shows a Plaintiff weak, struggling and experiencing significant health issues which corroborate the injury claim. At the same time, surveillance can be neutral meaning that it’s not supportive or negative to either sides’ case. Sometimes, surveillance shows absolutely nothing! Investigators can stake out an injured party’s residence all day. If that person doesn’t leave their home, the surveillance will show ZERO.

Regardless of what the surveillance shows, if the insurer intends on relying on the surveillance at trial, the surveillance or even the fact that that the surveillance was conducted on an accident victim needs to be communicated/disclosed to the Plaintiff’s lawyer. The particulars of that surveillance, if hard copies are not disclosed, need to be shared as well. Trial by ambush is not an acceptable practice in Ontario. Even if no video footage was taken that day, the fact that private investigators went out and sat around in their car for 5-7 hours waiting for the Plaintiff to get out of his/her home and do something; that too needs to be disclosed.

One more comment about this decision. You will note that the Judge awarded full contingency costs to the Plaintiff. Those costs were LESS than the disbursements incurred in the case. That means that the Plaintiff lawyer needed to spend $175,868.64 to recover $155,340.86 in fees. Without taking in to consideration the special award, looking solely at the costs and disbursements awarded in this case, the lawyer spent more in disbursements than they made in fees. This is not unique to Ontario, as we have a 2016 reported BC decision on this legal fee conundrum in BC. It would seem that personal injury cases across Canada are becoming so complex that the only way to have them litigated properly is by spending 1.5 dollars for every dollar a claimant hopes to recover. This economic model makes no sense and ought to be investigated further.